One More Thought About DOMA

Here’s something that I was thinking about this morning. Everyone agrees that marriage is a fundamental right. Everyone also agrees that civil marriages (except for the District of Columbia and certain areas of exclusive federal jurisdiction) are conferred by state law. The question, then, is whether the refusal of the federal government to recognize same-sex civil marriages unduly interferes with this fundamental right conferred by a state.

In other words, this is not an equal protection question. It is not a question of whether DOMA falls within Congress’s enumerated power. Congress could refuse (and often does) to recognize all sorts of other legal determinations made by states. The problem is that this refusal involves marriage. Our law has assumed since the Founding that what constitutes a civil marriage is what a state says unless the Constitution says otherwise (Loving) or Congress holds municipal jurisdiction (the District of Columbia). In other words, the definition of a marriage is final when a state makes its determination.

Anyway, we’ll all have more to chew on this afternoon.

UPDATE: This would mean, of course, that Congress is free to deny same-sex marriage within its exclusive municipal authority. I guess what I’m trying to say is that there’s a difference between exclusive municipal jurisdiction and exclusive federal jurisdiction (over, say, Social Security benefits nationally).